The 9th Circuit Weighs In On Stern v. Marshall (In re Bellingham)
What Isn’t The Public Rights Exception?
Since the establishment of the English monarchy, the “law of the land” provides a “public right” to assess and collect property from citizens, without the requirement of prior notice and a hearing. Due process of law is satisfied by virtue of the “public right” to arbitrarily assess taxes, for example.
Under the “law of the land,” “private rights” were recognized under the English monarchy system, since the Magna Carta of 1215, as a limit to the government’s (the King’s) right to arbitrarily deprive citizens of property without a judgment resulting from prior notice and a hearing. For a “private right” due process of law requires notice and an hearing before a judgment for money damages resulting from a cause of action for breach of contract or tort, for example.
In essence, this country was founded as the result of the citizens’ frustration with the arbitrary exercise of the “public right” under the English monarchy, “because the King of Great Britain ‘made Judges dependent on his will alone, for the tenure of their offices, and payment of their salaries.’” Stern v. Marshall at 17-18 citing The Declaration of Independence ¶ 11.
The individual states first adopted the English system’s “law of the land” with the diversity of “public rights” and “private rights” and eventually the United States Constitution did the same and addressed the concern for arbitrary exercise of the “public right” by trifurcation the power of the monarchy using Article I (Legislative), Article II (Executive) and Article III (Judicial).
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